Loweke v Queensland Police Service
[2005] QDC 187
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- Unreported Judgment
- Loweke v Queensland Police Service[2005] QDC 187
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Loweke v Queensland Police Service[2005] QDC 187
Loweke v Queensland Police Service[2005] QDC 187
DISTRICT COURT OF QUEENSLAND
CITATION: | Loweke v Queensland Police Service [2005] QDC 187 |
PARTIES: | GARY JOHN LOWEKE (Appellant) AND QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 400 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 16 June 2005 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 16 June 2005 |
JUDGE: | Judge J.M. Robertson |
ORDER: |
|
CATCHWORDS: | Appeal:- s 222 of the Justices Act where appellant convicted on the basis of s 129(1)(c) of the Drugs Misuse Act of possession of methylamphetamine; whether Magistrate correctly applied s 129(1)(c) in circumstances in which the prosecution had failed to prove beyond a reasonable doubt that another person was in the place in which the drug was found. Minute quantity of drug – where prosecution proved only that in 200 milligrams of liquid in a one millilitre syringe “methylamphetamine was detected”; where no evidence of actual quantity, whether prosecution could therefore overcome “commonsense and reality” test in Williams v R. Cases cited: Lawler v Prideaux [1995] 1 QdR 186 Symes v Lawler [1995] 1 QdR 226 Williams v R (1978) 140 CLR 591 Bourke (1993) 67 A.Crim.12 518 Donnelly v Rose [1995] 1 Qd 148 R v Stevenson [1994] QCA 373, (unreported judgment of the Court of Appeal, delivered on the 21st of September 1994) Legislation: s 222 Justices Act 1886 s 129(1)(c) Drugs Misuse Act 1986 |
COUNSEL: | J. McInnes (for the appellant) L. Hastie (for the respondent) |
SOLICITORS: | (for the respondent) Queensland Police Service Solicitor (for the appellant) |
- [1]On the 19th of April 2001 at around about 7.15 p.m. police intercepted a red Holden Commodore sedan in Palmwoods. The vehicle was intercepted in relation to possible traffic law violations, and the appellant Gary Loweke was the driver of the motor vehicle. Another male person, Bruce Rodney Justice, was sitting in the front passenger seat of the vehicle when it was intercepted. Police subsequently searched the vehicle and located a brown bag on the floor in the foot well on the front passenger side.
- [2]It was said by the police officer who located it that it was in plain view and would have been between the passenger's legs. Inside the brown bag, police located a zip-lock bag of green leafy material and a small black zip carry case. Inside the small black case, police located a small syringe with an orange cap, and it contained a small quantity of clear liquid. Later the liquid was analysed by a Government Analyst, Jennifer McGowan, who certified that it was a one millilitre syringe containing 200 milligrams of clear liquid, in which "methylamphetamine was detected".
- [3]On the 24th of September 2004, the appellant was tried for unlawful possession of methylamphetamine, and, on the 21st of October 2004, he was convicted and fined by the presiding Magistrate, Mr Kennedy, in the Maroochydore Magistrates Court. In his considered reasons, Mr Kennedy commented critically about the delay in prosecuting the appellant. As he noted, the trial was held three years and five months after the event, and, as a result, the long time interval had meant that memories had faded, as each witness had a different version of events. The aphorism, ‘justice delayed is justice denied’, is apt in this case, although there was at least one roadside recorded interview with the appellant. Which was in evidence, and there were photographs of the bag and contents. Another roadside tape, which was activated by police, was not available.
- [4]Mr Kennedy was not told why it took so long to come on for hearing, and there is no way in which I can attribute responsibility. The Bench Charge Sheet reveals that the first mention of the matter was on the 23rd of July 2002, when it was linked with some other matter. The file reveals that from that date until the 19th of May 2004, there were 24 mentions of the matter before on that date, a not guilty plea was confirmed and the prosecution elected summary jurisdiction. The trial was then set for the 24th of September. Mr Kennedy, in his reasons, has succinctly exposed the problems that arise when there are such a long delay and I will say no more about it.
- [5]From soon after the interception of the vehicle, it became obvious that there was a dispute about who owned or possessed the bag. It was common ground at the trial that Justice had been picked up earlier that evening by the appellant, who was then driving the vehicle. It is not suggested that the appellant owned the vehicle, indeed, there was some evidence that it was registered in the name of another.
- [6]The appellant was interviewed at the roadside and some of that conversation is on tape, but the tape is of poor quality and of very little evidentiary use. He told police that the bag was not his and that Justice had the bag with him when he entered the car. According to at least one of the police officers, Justice was spoken to after the appellant, but his interview was not recorded, or, if it was, it was not available to the Court.
- [7]Police gave evidence that Justice said the bag was in the vehicle when he entered it earlier that evening. Senior Constable Rohweder, who was one of the traffic officers who first intercepted the vehicle, said that Constable Nadurak actually searched the vehicle at a time when the appellant was present. At that time, he says Justice was nearby sitting in the gutter observing proceedings. He says that when Nadurak located the bag, he, Nadurak, spoke first to Justice and said, “Is this yours?”, indicating the brown bag. Justice said, “No, it's not mine, it belongs to Gary”. Constable Nadurak then turned back to the defendant and said, “Is this yours?”, and the defendant replied, “No, it was in the car when we borrowed it, it belongs to a friend”, or words to that effect. As I have noted later, he told police out of Justice's hearing, that Justice had the bag when he got into the vehicle.
- [8]By the time of the trial, Nadurak had resigned from the Police Service and he recalled the conversation a little differently from Rohweder. The importance of this evidence is that it is clear that primary possession of the bag and contents was an issue from the very beginning of the investigation.
- [9]The appellant has appealed on a number of grounds.
- The verdict was unreasonable and contrary the evidence;
- the learned Magistrate erred in law in applying section 129(1)(c) of the Drugs Misuse Act 1986, given that he could not exclude possession by the witness Justice, or a third party;
- the learned Magistrate erred in law in finding a case to answer on possession of more than a trace quantity of the drug, given that the certificate of analysis did not specify a quantity;
- alternatively, to ground three, the learned Magistrate erred in finding as a fact that there was possession of more than a trace quantity.
- [10]I will deal with ground 2 first. Section 129(1)(c) of the Drugs Misuse Act 1986 states:
- “(c)Proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of, is conclusive evidence that the drug was then in the person's possession, unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place”.
For the purposes of the Drugs Misuse Act 1986, “place” includes a vehicle. It was assumed that section 129(1)(c) was then the applicable provision at the trial, however, it did not become operational until 27th of September 2002. It does not matter, because section 57(1)(c), which did apply at the date of the offence is in the same terms and it is not necessary for me to consider whether the section is purely procedural or is substantive in nature, thus affecting the issue of retrospective application.
- [11]If the section, which is described as an evidentiary provision, is applicable, it places an evidentiary onus upon an accused person, which onus is to be discharged on the balance of probabilities. The section has been the subject of considerable discussion in the Court of Appeal. The judgments in Lawler v Prideaux [1995] 1 QdR 186 and Symes v Lawler [1995] 1 QdR 226 were delivered on the same day by Courts, each comprising the Chief Justice, Fitzgerald P and Cullinane J and the reasonings of the Courts in those cases is applicable to the circumstances here.
- [12]In Lawler, the appellant was held to be the occupier of certain premises in Cairns. After police executed a search warrant at those premises, the appellant and one, P, arrived. P had heroin in his possession and the appellant acknowledged that he knew this. He was convicted of possession of that heroin on application of the evidentiary provision. The case is authority for the proposition that section 129(1)(c) has no application where it is found that some other person has the possession of the drug. Each member of the Court applied slightly different reasoning to conclude that the appellant should succeed because section 57(1)(c), as it then was, had no application to the facts of that case.
- [13]Cullinane J took the view that the person P should be regarded as the place on which the heroin was, when its existence was detected. He rejected the argument made by the respondent that the relevant place was the premises in which P then was. Fitzgerald P held that the heroin was, “on” P, i.e. “in” his hand and not, “in or on” a “place” of which the appellant was in occupation, management or control. Chief Justice Macrossan held that (at 187):
“The intended operation of section 57(1)(c) … is confined to cases where there is no immediate relationship of physical possession demonstrated by a person in proximity to the item, that is, where there is no immediately obvious possessor, and the legislature thought it necessary or desirable to attribute possession to someone”.
- [14]It is immediately obvious that the facts in Lawler are distinguishable from the facts here and it could be argued that the reasoning of Fitzgerald P and Cullinane J should be confined to those facts or similar facts. The reasoning of the Chief Justice does however, go further than the facts in that case, and the appellant seeks to rely on that reasoning.
- [15]In Symes, the appellant was the occupier of a house in which another person had possession of drugs in a pouch, which he threw from a window while police officers were attempting to force entry. The appellant was convicted of possession of the drugs on the basis of section 57(1)(c). His appeal was allowed and the conviction quashed. Fitzgerald P and Cullinane J in a joint judgment held (at 227 - 228):
“The section makes no express provision for the rebuttal of the presumption of the possession by proof by an accused that, although present in or on a place occupied or managed or controlled by him, the drug was not physically in his custody or under his physical control. Nor does it expressly provide for rebuttal of the presumption of possession by proof that the drug is in or on the place against his will … the subsection proceeds from an assumption that its application is related to circumstances in which no person has physical custody or control of a drug which is simply ‘in or on’ a ‘place’.”
- [16]It follows from an application of this reasoning to the circumstances here, before Mr Kennedy could apply section 127(1)(c), it was first incumbent upon the prosecution to satisfy him that Justice, who was also in the vehicle, was not the person in possession of the drug. This is particularly so having regard to the location of the bag containing the drug in the foot well in a position where Justice's feet would have been when the car was intercepted.
- [17]Mr Kennedy did apply section 129(1)(c) to convict the appellant and he reasoned in this way:
“In order for Mr Loweke to be found guilty under section 9 of the Drugs Misuse Act without the aid of section 129(1)(c), the police have to prove he possessed it, that is, in effect, he put the bag into the car. I believe that there is not sufficient evidence for this and I therefore pass to Mr Justice. Mr Sloane submitted that I could find on the evidence that Mr Justice put the bag into the car, but once again I do not believe that there is sufficient evidence to prove this and we therefore must look at section 129(1)(c) of the Drugs Misuse Act.”
- [18]There are flaws in this process of reasoning. Having rejected the prosecution submission that he would find the appellant actually possessed the drug, because there was not sufficient evidence for that, the learned Magistrate then proceeded on the basis that as he could find no evidence that Mr Justice put the bag in the car, because, “I do not believe that there is sufficient evidence to prove this”, section 129(1)(c) applied.
- [19]The difficulty with that approach is that section 129(1)(c) can only apply, “where there is no immediate relationship of physical possession demonstrated by a person in proximity to the item”. That, in my opinion, would first require the prosecution to satisfy the Magistrate beyond a reasonable doubt that Justice was not the person who had possession of the drug. It was not for the appellant to prove on the balance of probabilities that Justice was the possessor at that point in the chain of proof. The prosecution could not satisfy that onus because the learned Magistrate rejected the evidence of Justice, which included his positive evidence that the drugs were not his and that the bag was in the car when he first entered, and the appellant must succeed on this ground and the conviction must be quashed.
- [20]Although it is unnecessary for me to deal with the other grounds, I intend to say something about ground 3, because of its potential importance to the prosecution of persons for small amounts of dangerous drugs.
- [21]Ground 3: In Williams v R (1978) 140 CLR 591 at 600, Gibbs J, (as his Honour then was), and Mason J (as his Honour then was), in a joint judgment said,
“… when the Act creates the offence of having possession of a dangerous drug or prohibited plant, without averting to quantity, it contemplates possession not of a minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession”.
- [22]Williams has been considered and applied on a number of occasions by the Court of Appeal. Bourke (1993) 67 A.Crim.12 518 involved a visible quantity of white powder containing an unmeasurable minute trace of heroin, which was given the lowest possible figure in the certificate. The appellant had told police that the white powder was sugar, which he had purchased believing it was heroin. In part, the Court applied Williams in allowing the appeal.
- [23]In Donnelly v Rose [1995] 1 Qd 148 (judgment delivered on the 16th of June 1993), the appellant was convicted of possession of heroin. A piece of aluminium foil was found in the possession of the appellant. It contained a plastic bag, which contained a white powder. The white powder was analysed and it was found to weigh only .026 of a gram. The analyst's certificate stated that there was heroin in the substance, but that there was, “insufficient sample … available for the quantity of heroin in the substance to be determined”.
- [24]The Court referred to Williams and favoured the view that the reference to visibility in that case was not intended to be a comprehensive statement of the relevant test and that passing the visibility test does not necessarily secure success for the prosecution. The Court said, at page 149:
“It is our opinion that Williams should be read as requiring application of a ‘commonsense and reality’ test. If it appears that the amount of heroin found would, if extracted, not be visible to the naked eye, then no offence has been committed, but it does not follow that proof that a minute speck would then be visible results in a conviction. It is our opinion that for a prosecution of this kind to succeed, it must be proved that there was, 'possession of such a quantity as makes it reasonable to say as a matter of commonsense and reality that it is the prohibited plant or drug of which the person is presently in possession'. It is not absolutely clear to us what sort of evidence would, in a marginal case, prove that. Here the prosecution proved no more than that the quantity of heroin was so small that the analyst could not determine the quantity of it. The evidence is plainly not enough, whatever the test and the appeal must be allowed.”
- [25]Williams was again considered in the R v Stevenson [1994] QCA 373, (unreported judgment of the Court of Appeal, delivered on the 21st of September 1994) in which I note with interest that Jerrard QC as Jerrard JA then was, appeared for the unsuccessful appellant. The Court referred to Donnelly, but not Bourke.
- [26]In Stevenson, the appellant was living in a house with others. Police executed a search warrant and a quantity of white powder was found in a small paper packet wrapped in plastic inserted in a slot of a purse belonging to the appellant. The purse was actually found in the appellant's car. The total weight of the powder was .054 grams, which was found to contain 18.1 per cent of pure heroin, thus the weight of the heroin in the powder was .009 of a gram.
- [27]The Court said at page 2 of the unreported judgment, by application of the commonsense and reality test in Williams:
“This is not a case like Donnelly where the quantity of heroin was not measurable. Nor is it a case like Williams where what was found was plainly not being kept by the accused for future use but was no more than the residue from former use. Here the substance containing the heroin was in an apparently carefully wrapped parcel in the appellant's purse. The learned Magistrate drew the inference from this, as he was in our view entitled to, that the substance was being kept by the appellant for later use … in our view, the learned Magistrate was justified in inferring from his observation of the of amount of the substance left after a portion had been taken for analysis and the proportion of heroin in that substance that the quantity of heroin involved was more than a minute quantity; and in inferring from its careful secretion by the appellant that it was a quantity worth keeping for future use. From those facts it was reasonable to conclude that, as a matter of common sense and reality, it was heroin of which the appellant was in possession.”
- [28]In this case, there is simply no evidence of the quantity of dangerous drug in the 200 milligrams of clear liquid. The only evidence was that it was detected. The appellant argues that this is insufficient and that all it amounts to is proof that the drug in the liquid was no more than a trace amount. He submits that the fact that the drug was in the syringe from which the Magistrate could readily infer that it was being kept for future use, does not assist the prosecution overcoming the first step of satisfying the learned Magistrate that the drug was more than a mere trace. In dealing with a no case submission at the end of the prosecution case on this basis, Mr Kennedy carefully considered the above authorities.
- [29]In dealing with the submission, particularly in his reasons at page 38 to 39 of the transcript, it is clear that what persuaded Mr Kennedy that there was a case to answer, was that the drug was found in the liquid in the syringe, which he found was, “set aside for future use”. He said, “Even if the police have failed to have full analysis done, then the present analysis is sufficient to show that methylamphetamine was detected in the contents of the syringe”.
- [30]In my respectful opinion, he erred in that reasoning. In my opinion the decisions referred to above, based on Williams, do require the prosecution, in order to succeed, to provide some evidence of the actual quantity of the dangerous drug, so as to get over the commonsense and reality test espoused in Williams. To permit the prosecution to rely on a simple statement that a dangerous drug was detected in what was, in any event, a very small quantity of host liquid is, in my opinion, to resort to speculation that whatever the quantity, it must necessarily, as a matter of commonsense and reality, be the drug of which the person was actually in possession.
- [31]I am conscious that my opinion may have implications for the way in which evidence is presented to Courts in cases involving possession of various very small quantities, particularly in relation to the extent of analysis that is required in such cases, however, I think that that has always been so in the light of the authorities to which I have referred. There is no way, in my opinion, that the prosecution can improve on its evidence, so there certainly should not a re-trial.
- [32]The appeal is allowed, the conviction is quashed and a verdict of acquittal is entered.